Reiman Corp. v. City of Cheyenne
Annotate this Case
Reiman Corp. v. City of Cheyenne
1992 WY 132
838 P.2d 1182
Case Number: 91-269
Decided: 10/13/1992
Supreme Court of Wyoming
REIMAN CORPORATION, Appellant (Plaintiff),
v.
CITY OF
CHEYENNE,
Appellee (Defendant).
Appeal from DistrictCourtofLaramieCounty, Nicholas G. Kalokathis,
J.
E. James
Burke of Burke, Woodard & Bishop, P.C., Cheyenne, for appellant.
Alexander
K. Davison and S. Gregory Thomas, City Attorney's Office, Cheyenne, for appellee.
Before
MACY, C.J., and THOMAS, CARDINE,
URBIGKIT* and GOLDEN,
JJ.
* Chief Justice at time of oral
argument.
GOLDEN, Justice.
[¶1.] Reiman Corporation
(Reiman) filed a declaratory judgment action against the City of Cheyenne (City) after the
City had awarded Reiman a construction contract on an allegedly "mistaken bid."
Reiman requested the district court to declare that Reiman was entitled to
withdraw/rescind its bid without forfeiture of the bid bond, or, in the
alternative, to declare that Reiman was entitled to reform its bid to correct
the alleged error. Following a hearing on cross-motions for summary judgment,
the district court issued an order which dismissed Reiman's
withdrawal/rescission claim for want of jurisdiction and granted summary
judgment to the City on the reformation claim. Reiman appeals from only that
portion of the district court's order which dismissed its withdrawal/rescission
claim. We will reverse and remand.
ISSUES
[¶2.] The only issue properly
before this court is: Whether the district court erred in dismissing Reiman's
withdrawal/rescission claim on the basis that it lacked subject matter
jurisdiction under the Uniform Declaratory Judgments Act.
FACTS
[¶3.] The City published an
invitation for bids for the construction of a new fire station headquarters
building on October 16 and 23, 1990. The invitation for bids informed all
prospective bidders that bids would be accepted until bid opening at 2:00 p.m.
on November 6, 1990. Reiman submitted its bid to the City at approximately 1:50
p.m. on November 6, 1990. Reiman's bid of $1,910,000, secured by a five percent
bid bond, was low bid for the project.
[¶4.] Approximately an hour
after the bid opening, Tom Reiman (Mr. Reiman), Vice President of Reiman,
allegedly discovered a clerical error of $71,000 in the computation of Reiman's
bid. Mr. Reiman promptly called Marian Black, the City's Director of Purchasing,
and Steve Elliott, the Project Architect, to inform them of the alleged error.
Mr. Reiman also wrote a letter to the City Council, in which he
explained:
I made
an error in adding up my subcontractor bid column. I was adding up my
subcontractor bids at approximately 1:35 p.m. when I received a return call from
Bob Strasheim of Mechanical Systems concerning his bid and alternate # 3. * * *
The last item I added in my "Total Sub Bid" column was line item # 12 precast
for $4,000.00. When I went back to adding the column after the interruption I
started at line item # 21 skylight which was below item # 20 for $4,000.00. As a
result I le[f]t out the following:
Line Item # 14[***]
$34,300.00
Line
Item # 15[***]
1,500.00
Line
Item # 16[***]
25,200.00
Line
Item # 19[***]
6,000.00
Line
Item # 20[***]
4,000.00
TOTAL
$71,000.00
Concluding
this letter, Mr. Reiman requested that Reiman be allowed to withdraw its bid
without forfeiture of the bid bond and that the contract be awarded to the next
lowest bidder.
[¶5.] Mr. Reiman appeared
before the City Finance Committee on November 21, 1990 and before the City
Council on November 26, 1990. At these meetings, Mr. Reiman reiterated the
circumstances leading to the allegedly "mistaken bid" and renewed Reiman's
request to withdraw its bid without forfeiture of the bid bond. Both the City
Finance Committee and the City Council voted to accept Reiman's bid as
originally submitted. Accordingly, the City delivered to Reiman a Notice of
Award and a Standard Form of Agreement Between Owner and Contractor on November
28, 1990. The Notice of Award required Reiman to, among other things, execute
the contract with the City within ten days. Reiman was advised that failure to
execute the contract within the ten-day period would result in a forfeiture of
the bid bond. The City issued an amendment to the Notice of Award on December 4,
1990, thereby extending Reiman's time for compliance to December 26,
1990.
[¶6.] Reiman filed a petition
for declaratory judgment and a motion for preliminary injunction against the
City on December 14, 1990. Reiman requested the district court to declare that
Reiman was entitled to withdraw/rescind its bid without forfeiture of the bid
bond or, in the alternative, to declare that Reiman was entitled to reform its
bid to correct the alleged error. Reiman also requested that the district court
issue a preliminary injunction to enjoin the City from either requiring Reiman
to execute the contract or from taking action to forfeit the bid bond during the
pendency of the declaratory judgment action. A hearing on Reiman's motion for
preliminary injunction was set for December 20, 1990.
[¶7.] On December 20, 1990,
Reiman and the City entered into an agreement which provided, among other
things, that Reiman would withdraw its pending motion for a preliminary
injunction, that the declaratory judgment action would remain pending, and that
Reiman would sign the contract and proceed with construction. The agreement
provided that the contract price would be determined as
follows:
d. If
the parties cannot agree in writing as to a contract price, the price shall be
determined as set forth in this Agreement based upon the decision of the
District Court in the action currently pending in Laramie County District
Court.
* * * *
* *
f. If
Reiman prevails, and the District Court finds that Reiman is entitled to rescind
its bid, Reiman shall be entitled to a contract price of
$1,981,000.00.
g. If
the City of Cheyenne prevails in such litigation, and the
District Court finds that Reiman is not entitled to rescind its bid, the City
shall be entitled to a contract price as stated in Reiman's original bid,
$1,910,000.00.
[¶8.] Following discovery
proceedings, the City filed a motion for summary judgment in the underlying
declaratory judgment action on October 7, 1991. Reiman responded with a
cross-motion for summary judgment on October 17, 1991. A hearing was then held
after which the district court issued an order on October 24, 1991. The district
court dismissed Reiman's withdrawal/rescission claim for want of jurisdiction
and granted summary judgment to the City on Reiman's reformation claim. The
district court specifically determined that the withdrawal/rescission issue was
rendered moot by the parties' agreement of December 20, 1990 and that
reformation was available only in instances of mutual mistake. This appeal
ensued.
DISCUSSION
[¶9.] On appeal, Reiman
challenges only that portion of the district court's order which dismissed its
withdrawal/rescission claim. Reiman contends that the district court erred in
determining that the withdrawal/rescission claim failed to present a justiciable
controversy within the meaning of the Uniform Declaratory Judgments Act. Reiman
concedes that withdrawal/rescission of its bid is no longer an option, but
contends that a justiciable controversy remains in that resolution of the
withdrawal/rescission claim will have the collateral effect of establishing the
contract price. Thus, the crux of the instant case concerns whether, as a
jurisprudential matter, the district court erred in dismissing Reiman's
rescission/withdrawal claim on the ground that the parties' December 20, 1990
agreement had rendered the issue moot. Resolution of this issue requires that we
examine the policies underlying both the Uniform Declaratory Judgments Act and
the doctrine of justiciability to determine if this is a proper case for
judicial action.
[¶10.] The Uniform Declaratory Judgments Act
dispelled the myth that the judicial arm of government could be extended only to
redress prior wrongdoings (corrective justice). Edwin M. Borchard, The
Declaratory Judgment - A Needed Procedural Reform (Part I), 28 Yale L.J. 1, 2
(1918). The Act is founded upon the premise that society is disturbed not only
when legal rights are violated, but also when they are placed in serious doubt
or uncertainty. Id. Consequently, the Act establishes a
procedural vehicle whereby litigants may approach the court for a declaration of
their "rights, status and other legal relations whether or not further relief is
or could be claimed" (preventive or corrective justice). Wyo. Stat. § 1-37-102
(1988). Edson R. Sunderland captured the essence of the effect of the
declaratory judgment on the administration of justice by explaining that, before
the advent of the declaratory judgment, "courts were employed only as repair
shops; since that time they have operated as service stations." Edson R.
Sunderland, A Modern Evolution in Remedial Rights, - The Declaratory Judgment,
16 Mich.L.Rev. 71, 77 (1917).
[¶11.] The stated purpose of the Uniform
Declaratory Judgments Act is "to settle and to afford relief from uncertainty
and insecurity with respect to legal relations * * *." Wyo. Stat. § 1-37-114
(1988). The Act is to be liberally construed to this end. Id.; Brimmer v. Thomson, 521 P.2d 574, 577 (Wyo. 1974) (begrudging
availability of declaratory judgment is inconsistent with its purpose).
Expounding upon the purpose underlying the Act, Professor Borchard has
succinctly stated:
As a
measure of preventive justice, the declaratory judgment probably has its
greatest efficacy. It is designed to enable parties to ascertain and establish
their legal relations, so as to conduct themselves accordingly, and thus avoid
the necessity of future litigation.
Edwin
M. Borchard, The Declaratory Judgment - A Needed Procedural Reform (Part II), 28
Yale L.J. 105, 110 (1918).
[¶12.] Although the Uniform Declaratory
Judgments Act is to be liberally construed to the end that courts may declare
"rights, status and other legal relations whether or not further relief is or
could be claimed," the Act does not expand the jurisdiction of the courts. The
right to seek a declaratory judgment is open only to those persons "* * * interested under a deed, will, written
contract or other writings constituting a contract, or whose rights, status or
other legal relations are affected by the Wyoming constitution or by a statute,
municipal ordinance, contract or franchise * * *." Wyo. Stat. § 1-37-103
(1988). The "interest" requirement is but an expression of the basic doctrine
that the judiciary will not invoke its remedial powers unless presented with a
justifiable controversy. Mountain West Farm Bureau Mut. Ins. Co. v. Hallmark
Ins. Co., 561 P.2d 706, 709 (Wyo. 1977).
[¶13.] A justiciable controversy is defined
generically as a controversy fit for judicial resolution. Numerous doctrines
have evolved under the justiciability umbrella which are aimed at isolating
those circumstances in which courts should withhold decision, either from
deference to the particular authority and competence of another branch of
government, or from recognition of the functional limitations of the adversary
system. The doctrines include the political question doctrine, the
administrative questions doctrine, the advisory opinions doctrine, the feigned
and collusive cases doctrine, the doctrine of standing, the doctrine of
ripeness, and the doctrine of mootness. 13A Charles A. Wright Et Al., Federal
Practice and Procedure § 3529 (1984).
[¶14.] Of particular importance to the instant
case are the doctrines of standing, ripeness, and mootness. These doctrines are
premised upon jurisprudential principles which are designed to promote judicial
economy and the wise exercise of judicial power. To these ends, the standing
doctrine requires that the litigants have a tangible interest at stake in the
subject matter before the court; the ripeness doctrine requires that the issue
presented to the court be sufficiently mature for judicial resolution; and the
mootness doctrine requires that a justiciable issue remain before the court
throughout the duration of the suit. Memorial Hosp. of Laramie Co. v. Dept. of
Rev. & Tax., 770 P.2d 223 (Wyo. 1989) and
Washakie Co. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980) (standing);
Indus. Siting Council v. Chic. & N.W. Transp., 660 P.2d 776 (Wyo. 1983) (ripeness); Rocky Mountain Helicopters, Inc. v.
Air Freight, Inc., 773 P.2d 911 (Wyo. 1989) (mootness).
[¶15.] The jurisprudential principles underlying
the standing, ripeness, and mootness doctrines are embodied in the definition of
a justiciable controversy adopted in Brimmer. The Brimmer court identified the
following four elements as being necessary to establish a justiciable
controversy under the Uniform Declaratory Judgments Act:
1. The
parties must have existing and genuine, as distinguished from theoretical,
rights or interests.
2. The
controversy must be one upon which the judgment of the court may effectively
operate, as distinguished from a debate or argument evoking a purely political,
administrative, philosophical or academic conclusion.
3. It
must be a controversy the judicial determination of which will have the force
and effect of a final judgment in law or decree in equity upon the rights,
status or other legal relationships of one or more of the real parties in
interest, or, wanting these qualities to be of such great and overriding public
moment as to constitute the legal equivalent of all of
them.
4. The
proceedings must be genuinely adversary in character and not a mere disputation,
but advanced with sufficient militancy to engender a thorough research and
analysis of the major issues.
Brimmer,
521 P.2d at 578.
[¶16.] There is no question but that a
justiciable controversy existed between Reiman and the City at the time the
petition for a declaratory judgment was filed with the district court. The
district court, however, determined that the parties' December 20, 1990
agreement rendered the withdrawal/rescission issue moot. Specifically, the
district court reasoned:
What
was once a very real and actual controversy over whether or not Reiman could
withdraw its bid without bond forfeiture, is now moot. Assuming the court were
to grant Reiman rescission, the contract would no longer stand; the City would
have to award the con[s]truction project to the next lowest bidder. This is no
longer possible, and thus what the parties ask of this court simply does not
make sense.
Hence,
the rationale for the district court's determination that it lacked subject
matter jurisdiction under the Uniform Declaratory Judgments Act was because a
ruling on the withdrawal/rescission issue could no longer "effectively operate,"
i.e., that withdrawal/rescission of bid could not presently be
ordered.
[¶17.] The district court erred in determining
that it lacked subject matter jurisdiction under the Uniform Declaratory
Judgments Act because the parties' December 20, 1990 agreement had rendered the
withdrawal/rescission issue moot. The doctrine of mootness encompasses those
circumstances which destroy a previously justiciable controversy. Wright, supra,
§ 3533.1. This doctrine represents the time element of standing by requiring
that the interests of the parties which were originally sufficient to confer
standing persist throughout the duration of the suit. Henry P. Monaghan,
Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973).
Thus, the central question in a mootness case is "whether decision of a once
living dispute continues to be justified by a sufficient prospect that the
decision will have an impact on the parties." Wright & Miller §
3533.
[¶18.] The district court did not focus upon
whether resolution of the withdrawal/rescission issue continued to be justified,
following the December 20, 1990 agreement, by the impact it would have upon the
parties. Rather, the district court centered attention upon whether a ruling on
the withdrawal/rescission could "effectively operate." The district court's
hyper-technical application of the requirement that its judgment "effectively
operate" is inconsistent with the liberal construction that is to be applied to
the Uniform Declaratory Judgments Act. See Kurpjuweit v. Northwestern Dev. Co.,
708 P.2d 39 (Wyo. 1985). The requirement that the judgment
of the court "effectively operate" means only that a court's decision must have
some practical effect upon the litigants, i.e., that a court may not issue a
purely advisory opinion. Justice Blume has expressed this concept by stating
that action under the Act is justified when "some useful purpose" will be
accomplished thereby. Holly Sugar Corp. v. Fritzler, 42 Wyo. 446, 463, 296 P. 206, 210 (1931); accord Beatty v. C.B. & Q.R. Co., 49 Wyo. 22, 37, 52 P.2d 404, 408 (1935).
[¶19.] We believe that Reiman's
withdrawal/rescission claim yet presents a justiciable controversy and that
consideration of the matter will serve the useful purpose of settling the
parties' on-going dispute over contract price. The December 20, 1990 agreement
merely changed the impact that resolution of the withdrawal/rescission issue
would have upon the parties' rights; it did not render the issue legally
insignificant. Jurisprudential concerns for judicial economy and concrete
adverseness are not implicated. The parties have a "tangible interest at stake"
in that $71,000 hinges upon resolution of the withdrawal/rescission issue. See
Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982) (financial interest in resolution of Presidential immunity issue
sufficient to defeat mootness claim arising under similar circumstances). We
harbor no misgiving but that the parties will thoroughly research the relevant
issues and militantly present them to the court for resolution. Moreover, this
is not a hypothetical or abstract case. The facts relevant to the
withdrawal/rescission issue developed in their natural course and exist to guide
judicial decision. See Wright, supra, § 3533.1. Finally, judicial resolution of
the withdrawal/rescission issue is not merely an academic exercise. As
previously stated, a decision on this issue will have the practical impact of
determining the construction price for the headquarters fire station
building.
[¶20.] Contract principles also support judicial
resolution of the withdrawal/rescission issue. Mootness questions, as with other
questions arising from settlement agreements, should be answered according to
the intent of the parties. Wright, supra, § 3533.2. In the instant case, the
parties' intent to be bound by judicial resolution of the withdrawal/rescission
issue is manifest in their agreement of December 20, 1990. Given that we find no
jurisprudential impediment to entertaining this suit, we feel that it would be
patently unjust not to hold the City to its end of the bargain, thereby leaving
Reiman in a quandary as to how to resolve the continued dispute over contract
price.
[¶21.] In summary, affirmation of the present
case would place this court in the illogical position of invoking the
jurisprudential doctrine of mootness, which is founded in large part upon the
principle of judicial economy, to thwart the parties' effort under the Uniform
Declaratory Judgments Act to expeditiously settle their controversy over
contract price in an attempt to avoid future litigation. Under the circumstances
of the instant case, this is what does not make sense. Consequently, we hold
that the district court erred as a jurisprudential matter in dismissing Reiman's
withdrawal/rescission claim for lack of subject matter jurisdiction under the
Uniform Declaratory Judgments Act.
DISPOSITION
[¶22.] The order of the district court which
dismissed Reiman's withdrawal/rescission claim for want of jurisdiction is
reversed. This case is remanded to the district court for a declaration as to
whether a public bid may be withdrawn/rescinded, under the circumstances of this
case, without forfeiture of the bid bond.
CARDINE, J., files a specially
concurring opinion.
THOMAS, J., files a dissenting
opinion.
CARDINE, Justice, specially
concurring.
[¶23.] This declaratory judgment suit as
originally filed was to determine whether Reiman could withdraw or rescind its
bid. When the parties made a new agreement to award the construction contract to
Reiman and pay or not pay an additional $71,000 over the bid price depending
upon the determination of the right to withdraw or rescind, a different case was
presented to the court. It is true that having entered into the construction
contract the parties could no longer rescind or withdraw the bid. Therefore,
that question was moot. But the $71,000 obligation under the new agreement still
exists. Whether that should be resolved in the declaratory judgment action or in
a separate action is the question here presented. Judicial economy would be
served by resolving the question in the declaratory judgment action; and,
therefore, I will concur.
THOMAS, Justice,
dissenting.
[¶24.] I respectfully dissent from the majority
opinion in this case. In my view, the dismissal by the trial court was correct
and, since it was correct, the trial court had a right to have its judgment
sustained. Seventy-one Thousand Dollars may indeed be a high price to pay for
careless addition in preparation of a contract bid. On the other hand, a
reversal of a district court, in an instance in which it entered a correct
judgment, is a high price for the court to pay.
[¶25.] Perhaps the process of fossilization is
an early affliction for me. I am satisfied, however, that this is an instance in
which a modicum of judicial conservatism is appropriate. While I probably would
have agreed to sustain a district court that entertained jurisdiction in a case
such as this, I cannot fault the district court for denying jurisdiction. Here
the liberal construction concept as applied to declaratory judgments has been
strained beyond the breaking point. The reach of the statute no longer is
confined to the statutory language. Judicial expediency and the appropriate
construct of a solid body of law are not always compatible, and they are not in
this case.
[¶26.] The majority opinion can be described as
a holding that, since the differences between the parties must somehow be
settled at some point, it is appropriate to have those differences determined in
this case. That result has superficial appeal. That appeal begins to diminish
when it is recognized Reiman came before the court asking to have a declaratory
judgment of its right to withdraw, without penalty, a bid submitted on a
municipal construction project or, alternatively, the right to reform its bid at
a time when the City of Cheyenne had accepted Reiman's bid and had submitted a
contract to Reiman for execution. The only documents that were pleaded to the
court in Reiman's Petition for Declaratory Judgment do not constitute a contract
and, obviously, there was not a written contract for the court to
construe.
[¶27.] It may be overkill to quote the pertinent
statute, but it states:
Any
person interested under a deed, will, written contract or other writings
constituting a contract, or whose rights, status or other legal relations
are affected by the Wyoming constitution or by a statute, municipal ordinance,
contract or franchise, may have any question of construction or validity arising
under the instrument determined and obtain a declaration of rights, status or
other legal relations.
Wyo.
Stat. § 1-37-103 (1988) (emphasis added).
At this
juncture, my point is that what was presented to the court by Reiman's pleading
does not qualify as a "written contract" nor does it qualify as "other writings
constituting a contract." It was a bid and, while the City had accepted the bid
by official action, the only relief prayed for by Reiman was a declaration of
its right to withdraw or to reform its bid. I do not believe even a liberal
construction of § 1-37-103 justifies a declaratory judgment as to "rights,
status or other legal relations" under a bid. In effect, the court's decision
amends the statute to include the word "bid."
[¶28.] The matter is exacerbated by the fact
that, after presenting its complaint, Reiman made an arrangement with the City
of Cheyenne to
execute the contract, in effect reserving the right to claim an additional
$71,000 as a part of the contract price. That agreement has some potential for
cognizance under the Uniform Declaratory Judgments Act, Wyo. Stat. §§ 1-37-101
to -115 (1988), but Reiman did not ask to have rights under the new agreement declared by the
court. The effect of this court's decision is to achieve exactly that, however.
The case is remanded so the trial court can articulate a declaration of rights
under the collateral agreement pursuant to which the contract let by the city
was executed. In the exercise of an extreme degree of caution, however, the
parties in their collateral agreement provided:
e. Although this
Agreement will be binding between the parties, such litigation [the case before this
court] shall be determined without reference to this Agreement [emphasis
added], i.e., the parties agree that this Agreement shall not be relevant
evidence in determining whether Reiman was entitled to rescind its
bid.
Our
decision simply ignores the agreement of the parties and sends this case back
for the trial court to consider the rights of the parties under the collateral
agreement despite their stipulation it not be referred to or considered as
evidence. It may be the trial court will be as creative as our court and will
find a way to declare rights under an agreement it cannot consider in evidence,
but I would be nonplussed if I were the district court.
[¶29.] There is another reason to affirm the
trial court that is even more compelling. In directing the trial court, in
effect, to consider the pleadings to have been amended to encompass the
collateral agreement, the majority says, "[a]s previously stated, a decision on
this issue will have the practical impact of determining the construction price
for the headquarters fire station building." Op. at 1187. The result in truth
and fact is that the majority opinion assumes the bid of Reiman can be reformed,
thus increasing it by $71,000. Yet, the majority recognizes the trial court
entered a summary judgment in favor of the City of Cheyenne on the issue of
reformation. The question the majority assumes will be resolved upon remand has
been finally decided. Since that judgment was not appealed, it stands as res
judicata on the right to have the bid reformed. The trial court will have little
difficulty in finally disposing of the case on remand.
[¶30.] I also have a concern about the wisdom of
this decision in the context of public policy. It is clear from the record
Reiman did not seek, in any way, to have any determination made with respect to
Wyo. Stat. § 15-1-113(f), which provides in pertinent
part:
(f) In advertising for
any bid, the forms of guarantee required under this section and approved by the
city or town shall be specified. In addition, bidders shall be required to
accompany each bid with a bid bond or if the bid is one hundred thousand dollars
($100,000.00) or less, any other form of bid guarantee approved by the city or
town, equal to at least five percent (5%) of the total bid amount, with
sufficient surety and payable to the city or town. The bid guarantee shall be forfeited as
liquidated damages if the bidder, upon the letting of the contract to him, fails
to enter into the contract within thirty (30) days after it is presented to him
for that purpose or fails to proceed with the performance of the contract
[emphasis added].
There
certainly is nothing within the language of this statute that could possibly be
construed to rescue Reiman from the situation of a mistake in submitting its
bid. The language is clear, and the invocation of the concept of liquidated
damages by the legislature had to be by design.
[¶31.] The practical effect of this decision,
however, will be that, anytime anyone submits a bid on a public construction
project and suffers bidders' remorse, a declaratory judgment suit will be filed
to have determined the right of the bidder to not perform its bid. The pragmatic
consequence in every instance has to be that, if the disparity between the
contested bid and the next higher bid is approximately the amount required to
litigate the declaratory judgment action, the successful bidder will be
permitted to withdraw the bid it now finds to be unsatisfactory. The purpose of
the statute will be frustrated in such instances. I find this to be an
undesirable burden to foist upon the competitive bidding process for public
construction projects.
[¶32.] In my view, the district court was
precisely correct when it ruled that, by signing the contract, the parties
mooted the issues that purportedly were presented in their declaratory judgment
claim. The trial court perhaps went further than it needed to when it
contemplated reformation of the contract to change the price, but I cannot
perceive how its disposition of that issue on the merits by granting summary
judgment to the City of Cheyenne can be refuted. I know of no precedent
from this court that would justify reformation upon a unilateral mistake,
although by this remand we may be suggesting such a rule.
[¶33.] While I might, at least for myself,
develop a response to the majority position that is more sound than that of the
trial court, I think this circumstance is one in which the trial court's views
deserve to be heard. Consequently, I have attached as Appendix A to this opinion
the entire pertinent order of the district court which, as I have said,
correctly disposes of the case.
[¶34.] I would affirm the district
court.
APPENDIX
A
IN THE
DISTRICT COURT FOR THE FIRST JUDICIAL DISTRICT
STATE
OF WYOMING, COUNTY OF LARAMIE
DOCKET
NO. 125-421
REIMAN
CORP., Plaintiff,
vs.
CITY OF
CHEYENNE,
Defendant.
Filed
October 24, 1991
ORDER
GRANTING PARTIAL SUMMARY JUDGMENT IN PART AND ORDER DISMISSING FOR LACK OF SUBJECT MATTER
JURISDICTION IN PART
[¶35.] This case originated with a petition for
declaratory judgment filed by Reiman Corp., Plaintiff, against the City of
Cheyenne,
Defendant. This petition is the basis for the motion for summary judgment filed
by the City and the cross-motion for summary judgment filed by
Reiman.
[¶36.] The petition sought a declaratory
judgment allowing Reiman to withdraw its bid in the amount of $1,910,000.00,
submitted pursuant to the City's invitation for bids for the construction of a
new Headquarters Fire Station, or, in the alternative, to allow a reformation of
the bid to correct an error made in calculating the bid price, which should have
been $71,000.00 more, or a price of $1,981,000.00. Additionally, the petition
requested that a bid bond, submitted with the bid, in the amount of five percent
(5%) of Reiman's total bid, be returned to Reiman. The City refused to allow
Reiman to withdraw its bid unless Reiman forfeited its bond, relying on the
competitive bidding statute at W.S. § 15-1-113 (1991
Cum.Supp.):
(f) . .
. The bid guarantee shall be forfeited as liquidated damages if the bidder, upon
the letting of the contract to him, fails to enter into the contract within
thirty (30) days after it is presented to him. . . .
[¶37.] Pending the resolution of the petition
for declaratory judgment, Reiman moved to have the City temporarily enjoined
from taking any action to cause a forfeiture of its bid bond and also enjoined
from requiring Reiman to sign a construction contract. Prior to the hearing
seeking temporary relief, Reiman entered into a stipulated agreement with the
City. The parties agreed to the following relevant
provisions:
b. The
Declaratory Judgment action currently pending in Laramie County District Court
will remain pending.
c.
Reiman will execute the contract presented by the City and will perform the work
specified in the contract. The price Reiman Corp. will be paid for the work will
be either the original bid price of $1,910,000.00 or the amended bid price of
$1,981,000.00 or such other price as the parties agree upon in
writing.
d. If
the parties cannot agree in writing as to a contract price, the price shall be
determined as set forth in this Agreement based upon the decision of the
District Court in the action currently pending in Laramie County District
Court.
e.
Although this Agreement will be binding between the parties, such litigation
shall be determined without reference to this Agreement, i.e., the parties agree
that this Agreement shall not be relevant evidence in determining whether Reiman
was entitled to rescind its bid.
f. If
Reiman prevails, and the District Court finds that Reiman is entitled to rescind
its bid, Reiman shall be entitled to a contract price of
$1,981,000.00.
g. If
the City of Cheyenne prevails in such litigation, and the
District Court finds that Reiman is not entitled to rescind its bid, the City
shall be entitled to a contract price as stated in Reiman's original bid,
$1,910,000.00.
[¶38.] This agreement allowed Reiman to commence
work under the contract, while at the same time seeking to reserve for judicial
determination the question of whether Reiman would be entitled to receive the
additional amount of $71,000.00 due to its mistake in preparing the bid. By
their respective motions for summary judgment, both the City and Reiman now seek
to have the court resolve the question of additional
compensation.
[¶39.] This court is concerned about whether a
"justiciable controversy" now exists within the meaning of the Uniform
Declaratory Judgments Act, W.S. § 1-37-101 through § 1-37-115. The elements of a
justiciable controversy under the Act are as follows:
* * *
First, a justiciable controversy requires parties having existing and genuine,
as distinguished from theoretical, rights or interests. Second, the controversy
must be one upon which the judgment of the court may effectively operate, as
distinguished from a debate or argument evoking a purely political,
administrative, philosophical or academic conclusion. Third, it must be a
controversy the judicial determination of which will have the force and effect
of a final judgment in law or decree in equity upon the rights, status or other
legal relationships of one or more of the real parties in interest, or, wanting
these qualities be of such great and overriding public moment as to constitute
the legal equivalent of all of them. Finally, the proceedings must be genuinely
adversary in character and not a mere disputation, but advanced with sufficient
militancy to engender a thorough research and analysis of the major issues. Any
controversy lacking these elements becomes an exercise in academics and is not
properly before the courts for solution. * * *
Brimmer
v. Thomson, 521 P.2d 574, 578 (Wyo. 1974); Mountain West Farm Bureau Mutual
Insurance Co. v. Hallmark Insurance Co., 561 P.2d 706, 710 (Wyo.
1977).
[¶40.] If the court were to determine that the
bid could be rescinded, it could not order its rescission because Reiman is
performing under that bid. Any order which would issue from this court would not
serve to allow Reiman to withdraw its bid. Thus, a judgment regarding rescission
would not effectively operate.
[¶41.] The method by which the parties seek to
resolve their dispute presents an issue of subject matter jurisdiction. (See,
Mountain West, at 710. A justiciable controversy is a jurisdictional
requirement.) The court is not being asked to rescind the bid. Rather it is
being asked to decide whether the bid could have been rescinded. The parties
have agreed that if the court rules that the bid could have been rescinded,1 then Reiman by agreement gets the
additional $71,000.00. If the court determines that the bid could not have been
rescinded, Reiman is paid the original bid quoted.
[¶42.] The actions of the City and Reiman,
subsequent to Reiman's petition for declaratory judgment, have rendered the
issue of rescission moot. This is not to say that a controversy does not exist
as to the contract price. Indeed a very real controversy regarding the price
does exist. But as to the specific question of rescission, subsequent conduct by
the City and Reiman have rendered the issue moot. Reiman has executed the
contract presented to it by the City and Reiman has proceeded to perform under
the contract. What was once a very real and actual controversy over whether or
not Reiman could withdraw its bid without bond forfeiture, is now moot. Assuming
the court were to grant Reiman rescission, the contract would no longer stand;
the City would have to award the construction project to the next lowest bidder.
This is no longer possible, and thus what the parties ask of this court simply
does not make sense.
[¶43.] Undoubtedly, a dispute does still remain
between the City and Reiman over the contract price amount. However, this
dispute is not properly decided based upon a determination regarding rescission.
A decision regarding rescission cannot determine the price except only as the
parties have agreed. "The court may refuse to render a declaratory judgment
where the judgment would not terminate the uncertainty or controversy giving
rise to the proceeding." W.S. § 1-37-108. Moreover, the issue presented seeks an
advisory opinion. It is advisory because it seeks a declaration of what could have been had the parties
proceeded with the temporary relief sought, not what is. (See, Brimmer, at 579.
"It is axiomatic that the Declaratory Judgments Act cannot be relied upon to
secure an advisory opinion. * * * An advisory opinion is one which adjudicates
nothing and binds no one [citations omitted].")
[¶44.] Even though this court has determined
that it lacks subject matter jurisdiction to resolve the prayer seeking
rescission, it may yet exercise subject matter jurisdiction over that portion of
the prayer seeking reformation. The issue of reformation is based on the
substantive and real controversy over the price amount which constitutes a
justiciable controversy needing resolution.
[¶45.] The law on reformation, however, applies
only to those matters which involve a mutual mistake. This is not a case of
mutual mistake. A unilateral mistake does not provide grounds for reformation.
See, Svalina v. Big Horn National Life Insurance Co., 466 P.2d 1018 (Wyo. 1970);
City of Baltimore v. DeLuca-Davis Construction Co., 210 Md. 518, 124 A.2d 557
(1956); Department of Transportation v. Ronlee, Inc., 518 So. 2d 1326 (Fla. Dist.
Ct. App. 1987). Moreover, to order reformation would be incompatible with the
statutory scheme concerning public contracts.
[¶46.] Accordingly, as to reformation, partial
summary judgment is granted in favor of the City. As to rescission, the court
determines that it has not been presented a justiciable issue within the meaning
of the Uniform Declaratory Judgments Act.
DATED
this 24 day of October, 1991.
/s/
Nicholas G. Kalokathis NICHOLAS G. KALOKATHIS DISTRICT
JUDGE
cc:
Alexander Davison James Burke
FOOTNOTES
1 The parties have
stipulated that the agreement on file herein cannot be considered as evidence.
This court is not bound by this agreement. Indeed to ignore it would be
tantamount to allowing the parties to confer subject matter jurisdiction by
stipulation, an impossible prospect. See, White v. Board of Land Commissioners,
595 P.2d 76, 79 (Wyo. 1979). "Parties cannot confer
jurisdiction by consent. [Citations omitted] and jurisdiction of subject matter
cannot be waived. [Citation omitted.]
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